The past week has included a lot of blog action about the lawsuit Jose Padilla (and his mother) filed against John Yoo – for example here and here and here and here and here and here.

Three days ago, the Wall Street Journal’s editorialists ramped up the rhetorical level on their blog. To the WSJ, it is so axiomatic that the suit is frivolous that they barely discuss its factual allegations or legal theory. Instead, what captivates the hearts and minds of the WSJ is the fact that the suit was brought by attorneys from Yale’s human rights clinic, and Yale is John Yoo’s alma mater. The added fact that Padilla and his mother asked only for one dollar in damages plus declaratory relief proves that the suit is merely “a political stunt intended to intimidate government officials.” And Yale’s clinic – which the editorialists cavalierly identify with the entire “antiwar left” – is merely “a leftwing bucket shop.”Of course, it’s hard to imagine any group devoted to international human rights litigation that the WSJ wouldn’t describe as a leftwing bucket shop, so we may safely let that one pass. And the dollar-damages issue is a red herring. Padilla’s lawyer explains that it was a client request, done to make clear that this isn't a greed suit. If Padilla had asked for twenty million dollars, would the WSJ have liked it better? Wouldn’t they have intoned their familiar lament about gold-digging plaintiffs in a tort system run wild? For that matter, what sense can be found in their argument that the low damages shows the lawsuit is “intended to intimidate government officials” (whose legal expenses, by the way, would be paid by the government)? Peter Lattman, claqueing on the WSJ’s law blog, congratulates his colleagues for their “amusing” lead and “zinger” conclusion; at least he has the decency not to applaud their logic.

The Yale non-issue is an even bigger red herring. On Volokh Conspiracy, the usually-acute Orin Kerr also finds the Yale-versus-Yale plotline “particularly interesting.” To the contrary: it is particularly uninteresting and irrelevant. Does anyone think the lawsuit would not have been filed had John Yoo graduated from a different law school? Or that no other law school’s human rights clinic would have launched such a suit? The basic point of the suit (regardless what you think of its merits) is to hold government officials accountable for torture and prisoner abuse – about as fundamental an issue of core human rights as anyone could possibly find. Any human rights clinic that wouldn’t at least consider filing this lawsuit would be asleep at the switch.

A final red herring is the fact that the suit is solely against John Yoo. On Opinio Juris, Duncan Hollis asks “Why go after Yoo and not someone higher up the chain…?”; subsequently he adds a reader’s correction, which points out that Yale’s clinic filed a similar lawsuit in South Carolina against other officials involved in Padilla’s mistreatment (including John Ashcroft and Donald Rumsfeld). Exactly so: The obvious reason for suing Yoo in California is to avoid challenges on the basis of personal jurisdiction if he were joined as a defendant in the South Carolina suit. For some reason, the South Carolina suit has gotten almost no play in the news; I suppose we must credit the kerfluffle over the Yoo suit to Mr. Yoo’s higher profile and greater willingness (admirable in some ways) to be a lightning rod.

What really matters is the merits of the suit. Among the bloggers, John Steele has done the best job of raising the substantive issues; so have a few comment contributors in the other blogs. I'd like to consider just a few of them.

To begin with, the basic theory in the complaint is straightforward: it alleges that Mr. Yoo, while a government lawyer, actively participated in depriving Jose Padilla of his constitutional rights. He did this not only by writing legal opinions legitimizing the deprivations, but by actively participating in a five-man War Council that planned War on Terror legal strategy. (See Jack Goldsmith's memoir The Terror Presidency, pp. 22-23; according to Goldsmith, other War Council members included Alberto Gonzales, David Addington, William J. Haynes, and Tim Flanigan. Conspicuously excluded from the War Council were Yoo's OLC boss Jay Bybee, and Attorney-General Ashcroft, a fact that Ashcroft resented.) Padilla, remember, is a natural-born U.S. citizen, captured and imprisoned within U.S. territory, so the case raises no Guantanamo-like jurisdictional issues. The allegations detail a pattern of treatment, heavily featuring prolonged isolation and disorientation tactics, that amounted to an all-out assault on Padilla's personality; by late 2006 he was described as having the personality of a piece of furniture. One of the South Carolina defendants, Admiral Lowell E. Jacoby, had filed an affidavit explaining how crucial total isolation was to Padilla's interrogation; it shows that Padilla is not simply making up the allegations. For years the government fought to keep Padilla from meeting with an attorney, then from obtaining habeas review. In the end, even the deeply conservative Court of Appeals Judge Michael Luttig all but accused the government of manipulating the Padilla case to keep the Supreme Court from reviewing his detention.

Now on to some of the key questions (apart from the truth of the allegations):

1. Should a lawyer be held liable for advising a client about the law? A quick response is that the lawsuit charges not merely that John Yoo advised other officials that the kind of mistreatment Padilla endured is legal, but also that he participated in policy decisions about detainee treatment as a member of the War Council. (See paragraphs 93-94, 96-97 of the complaint.) Professor Kerr is mistaken when he demeans the complaint as merely a suit "for providing bad legal advice."

Clearly, the plaintiffs face a daunting task proving their case; and, if the government takes the "nuclear option" of invoking the state secrets privilege, their case could disappear quickly. (Claims of attorney-client privilege would be far harder to sustain - first, because the information Yoo has already provided in his memoir War By Other Means may waive the privilege on some matters, and more basically because of the crime-fraud exception to the privilege.)

But the steep hill plaintiffs have to climb has no bearing at all on the legal merits of the complaint. It's completely straightforward that lawyers can be held responsible for actions taken on behalf of clients, including actions that look like ordinary lawyerly activity. To take an extreme case, the Seventh Circuit Court of Appeals once upheld an obstruction-of-justice conviction against a lawyer representing an alleged racketeer because he filed too many motions and lawsuits and thereby disrupted an investigation of his client (U.S. v. Cueto, 151 F.3d 620 (CA 7 1998)). The lawyer, according to the court, had crossed the line from a criminal lawyer to a lawyer-criminal; he went to prison for 87 months. Lawyers have been held civilly and criminally liable for bad opinion letters (canonical cases are Greycas v. Proud, 826 F.2d 1560 (7th Cir.1987) and U.S. v. Benjamin, 328 F.2d 854 (2d Cir. 1964)). (And, although this is a tort suit and not an ethics complaint, it is worth noting that ethics standards forbid lawyers from from counseling or assisting clients in conduct the lawyer knows is illegal. Of course, John Yoo claims that he "knew" nothing of the sort, and continues to defend not only the good faith, but the legal validity of his widely-castigated opinions. How much to credit assertions of good faith would be a task for a fact-finder.)

2. Government lawyers too? Well, yes. To take the best-known precedent, after World War II the United States prosecuted German government lawyers in the second round of Nuremberg trials. Scott Horton has blogged on these cases here, and elaborated in his essay "Through a Mirror Darkly: Applying the Geneva Conventions to 'A New Kind of Warfare'," in Karen J. Greenberg, ed., The Torture Debate in America (Cambridge UP 2006). The lawyers wrote memos and orders stripping Geneva Convention protections from Russian troops on the Eastern Front, and legitimizing the "night and fog" disappearance of political suspects. Two government lawyers, Rudolf Lehmann, Chief of the Legal Department of the High Command of the German Armed Forces, and Franz Schlegelberger, Acting Reich Minister of Justice, were convicted for their roles in writing the Night and Fog decree and orders removing captives from court-martial jurisdiction. (Lehmann's case is reported in the High Command Case, U.S. v. Wilhem von Leeb et al., Judgment, XI Trials of War Criminals before the Nuernberg Military Tribunals 690-95, while Schlegelberger's is in the better-known Justice Case.)

This may sound like ancient history, but it seems significant that in the past the U.S. threw the book at government lawyers for conduct that is awfully close to the allegations in this lawsuit.

3. What about immunities? The short answer: only a few government officers get absolute immunity from lawsuits growing out of their performance of their duties, and OLC lawyers aren't among them. The President does (Nixon v. Fitzgerald, 457 U.S. 731 (1982)). Judges do (the revolting case Stump v. Sparkman, 435 U.S. 349 (1978)). So do prosecutors, when they are prosecuting: Imbler v. Pachtman, 424 U.S. 409 (1976). But prosecutors get only qualified immunity when they are not prosecuting but -- please note -- giving legal advice to interrogators. That's Burns v. Reed, 500 U.S. 478 (1991), and one paragraph seems especially relevant:

The Court of Appeals speculated that anything short of absolute immunity would discourage prosecutors from performing their vital obligation "of giving legal advice to the police…"…Although the absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully, "'wherean official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.'” Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.

Burns v. Reed, at 494-95. For that matter, under Mitchell v. Forsyth, 472 U.S. 511 (1985), the Attorney-General gets only qualified immunity -- specifically, immunity "so long as his actions do not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’" Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

One commenter on Professor Kerr's post, nom de blog "A Guest," correctly points to Mitchell v. Forsyth and Burns v. Reed. Professor Kerr responds that because OLC serves a quasi-judicial function within the executive branch, these cases wouldn't necessarily apply; the test for absolute versus qualified immunity is functional, and for an OLC lawyer the function is different. I have my doubts about this response (and, to be fair, so does Kerr): "quasi-judicial" isn't "judicial," and there is no reason to suppose that Stump v. Sparkman's rule of judicial immunity should extend to lawyers giving legal opinions outside of public scrutiny. The Court discussed this question in Mitchell:

[M]ost of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help to prevent abuses of authority from going unredressed. Legislators are accountable to their constituents, ...and the judicial process is largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results. Similar built-in restraints on the Attorney General's activities in the name of national security, however, do not exist. And despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed..., the label of 'national security" may cover a multitude of sins....'"

1. The rulings/opinion going into discovery in the Elmaghraby case come to mind, although I think that a settlement was reached with the plaintiffs before discovery into what procedures and policies Ashcroft et al authorized and were aware of went far.

2. Qualified or absolute, immunity for participation in what I think is best characterized as issuance of an attainder via Executive Branch legal opinion and Executive Order, would have to go a far ways to be enveloped in the cloak of performance of constitutional duties.

I don't suppose there's a link to the February filing against the So. Car. group of defendants, is there?

The allegations detail a pattern of treatment, heavily featuring prolonged isolation and disorientation tactics, that amounted to an all-out assault on Padilla's personality; by late 2006 he was described as having the personality of a piece of furniture. One of the South Carolina defendants, Admiral Lowell E. Jacoby, had filed an affidavit explaining how crucial total isolation was to Padilla's interrogation; it shows that Padilla is not simply making up the allegations.

How do you figure?

Admiral Jacoby simply states that Padilla was isolated while in the brig. There is nothing whatsoever unlawful or unconstitutional about isolating an enemy combatant (even American citizens) during military interrogation. Indeed, it has been SOP for decades.

Furthermore, captured enemy combatants (even American citizens) have never been and are not now provided with attorneys during military interrogation.

As an American citizen, Padilla has a right to silence against incriminating himself and a right to counsel to guide him through the criminal justice system. However, as a prisoner of war, Padilla has no right to silence or to an attorney during military interrogation. The information gained during military interrogation cannot and was not used to criminally prosecute him.

Nor is isolation considered to be unlawful torture even in the civilian context. Padilla has been properly and lawfully kept isolated since his release from the brig into the criminal justice system and will probably be sent to the Supermax out here in Colorado, where he will remain in solitary for the rest of his life.

In fact, Padilla alleges in paragraph 1 of his complaint (and the government has previously denied) far more than isolation:

Plaintiff Jose Padilla is a United States citizen who was imprisoned as an “enemy combatant” in a military brig, without charge and without ability to defend himself or challenge his conditions of confinement for three years and eight months. Throughout those years, Mr. Padilla suffered gross physical and psychological abuse at the hands of federal officials as part of a systematic program of abusive interrogation intended to break down Mr. Padilla’s humanity and his will to live. For nearly two years, Mr. Padilla was held in complete isolation and denied all access to the court system, legal counsel and his family. He was subjected to mistreatment including but not limited to extreme and prolonged sleep and sensory deprivation designed to inflict severe mental pain and suffering; exposure to extreme temperatures; interrogation under threat of torture, deportation and even death; denial of access to necessary medical and psychiatric care; and interference with his ability to practice his religion. In the year and a half that Mr. Padilla remained in the Brig after he was granted limited access to legal counsel, much of this severe abuse continued.

There is no evidence that any of these allegations of "torture" are true except for the claims of a liar and a traitor, who is a member of a terrorist organization whose manuals teach their members to falsely allege torture if they should be captured.

To begin with, the basic theory in the complaint is straightforward: it alleges that Mr. Yoo, while a government lawyer, actively participated in depriving Jose Padilla of his constitutional rights. He did this not only by writing legal opinions legitimizing the deprivations, but by actively participating in a five-man War Council that planned War on Terror legal strategy.

Perhaps I missed it, but what Yoo memo or legal advice counseled that the government can perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?

Any human rights clinic that wouldn’t at least consider filing this lawsuit would be asleep at the switch.

And any human rights clinic which follows the Rule 11 prohibition against filing frivolous suits without evidence would have just as quickly dismissed the consideration.

Bart De Palma: "Perhaps I missed it, but what Yoo memo or legal advice counseled that the government can perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?"

Heh. Ya, perhaps you did Bart. As a matter of fact, it's in the very first post-911 Yoo memo:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

John Yoo, THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ OLC (2001.09.25), available at:

http://www.usdoj.gov/olc/warpowers925.htm

See also John Yoo, APPLICATION OF TREATIES AND LAWS TO AL QAEDA AND TALEBAN DETAINEES, DOJ OLC (2002.01.09), available at:

http://www.pegc.us/archive/DOJ/20020109_yoomemo.pdf

That memo examines every applicable provision of 18 USC 2441 (war crimes) in order to fabricate the grateful conclusion that every last one of them is inapplicable.

The only thing on which there has been absolutely no evidence is that Padilla is an "enemy combatant" which would have justified his transfer to the military. Padilla's situation is even more extreme than that of Milligan and there's no question but that there was no Constitutional right to arbitrarily issue attainder against men who were not taken on the battlefield. Civilian courts were open and operating throughout each of the states where Padilla was taken. Moreover, no one ever even alleged that he was a member of al-Qaeda and even the torture used for the arrest warrant does not say that he was.

Brig. Gen Thiessen does say that Geneva Conventions were violated and also references things that are so bad he doesn't want to specify them in his written report.

And while you bounce around between calling Padilla - without proof - an "enemy combatant" and later a prisoner of war, the fact remains that extreme and prolonged isolation is prohibited as torture, and especially when accompanied by a human experimentation behaviour plan involving no speaking and isolation so total you have the goggles and earmuffs.

The information used during torture interrogations was used to issue an arrest warrant for Padilla and was also used in the Nifongesque press conference to completely foul the jury pool with unwarranted, unproven, torture based and flat wrong accusations and speculations.

Given the number and amount of lies that have been routinely put forward by the Bush Dept. of Justice, any new kettles and pots will have to be issued in rainbow hues, all the black having been used up by now. But last I looked, Brig. Gen Thiessen hadn't been referred to as much of a liar.

In addition, it is very clear - of the crystal variety, that the procedures, including assault and hypothermia, authorized in the memos given to DOD were absolutely against the UCMJ as well as Geneva Conventions, a point raised over and over by Alberto Mora and other JAG, and that the lack of limits on the duration and combination of procedures was also a violation.

What was being done with Padilla was years of human experimentation. There is nothing comparable between the "isolation" he is experiencing in the criminal justice system and the isolation he was subjected to at the So. Car brig (combined, also, with 'other'specified and unspecified techniques per the Thiessen report).

Moreover, as someone not taken on the battlefield, there is a tremendous difference as well, one that has always been recognized by law, reason and morality - between punishment after evidence and conviction vs. punishment by fiat and attainder. It is why no part of the US govt is vested with the right to engage in attainder or to initiate pains and penalties without prior trial.

In addition to hard evidence such as the Thiessen report, the other evidence is so very evocative of governmental criminal behaviour - the cover ups and the propaganda.

From the Padilla "press conference" to the misrepresentations to the Sup Ct. by the Deputy Solicitor General to the disappearance of the final interview tapes for Padilla, to the inexplicably untaped 70ish interviews to the hiding of the authorizations to engage in violations of the UCMJ from JAG and others to the misrepresentations by Haynes to the SJC about the involvement of JAG in the procedures that he and Rumsfelds authorized based on Yoos and later Goldsmith's opinions, to preventing Red Cross contact to the destruction of waterboarding tapes showing the waterboarding of a source for the Padilla arrest warrant, etc. - circumstantial evidence is evidence, and destruction of tapes is at least as "evidentiary" as a tape recording of a man discussing a zuchinni.

I will have to admit that O'Hare airport is for all practical purposes a "battlefield" at times; I remember one trip through there in a snowstorm, and was quite thankful no gate agents lost their lives that evening....

"There is no evidence that any of these allegations of 'torture' are true except for the claims of a liar and a traitor, who is a member of a terrorist organization [...... blah-blah-blahhhhhh]"

... but, as any lawyer should know, the case should go to trial for a determination of the facts, as long as the complaint and allegations constitute a cause of action. Personal testimony is evidence, and any such factual allegations must be taken as being true for purposes of deciding any motion for dismissal on SJ.

Bart De Palma: "Perhaps I missed it, but what Yoo memo or legal advice counseled that the government can perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?"

Heh. Ya, perhaps you did Bart. As a matter of fact, it's in the very first post-911 Yoo memo:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

The memo discusses the President's plenary CiC authority over the deployment and use of military forces against al Qaeda and the Taliban.

How does this memo authorize the government to perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?

See also John Yoo, APPLICATION OF TREATIES AND LAWS TO AL QAEDA AND TALEBAN DETAINEES, DOJ OLC (2002.01.09), available at: http://www.pegc.us/archive/DOJ/20020109_yoomemo.pdf

That memo examines every applicable provision of 18 USC 2441 (war crimes) in order to fabricate the grateful conclusion that every last one of them is inapplicable.

This memo addresses whether international and domestic law applies al Qaeda and the Taliban captured in Afghanistan.

Once again, how does this memo authorize the government to perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?

I do not claim to be an expert in Yoo's work, but I do not recall him ever addressing whether or how international and domestic law applies in the United States against a US citizen acting as an agent of al Qaeda.

Foreign enemy combatants captured and held overseas fall under a completely different category than Padilla.

The only thing on which there has been absolutely no evidence is that Padilla is an "enemy combatant" which would have justified his transfer to the military.

A jury found beyond a reasonable doubt based just upon the unclassified evidence that Padilla was a member of al Qaeda. The military reportedly has far more information which proves Padilla's treason, but that information is not admissible for the purposes of criminal prosecution.

Furthermore, the standard of proof for military detention is the far lower preponderance of evidence. Thus, the military could have held Padilla with far less evidence that the jury possessed.

Padilla's situation is even more extreme than that of Milligan.

The Supremes held that Milligan was properly held without charges by the Union military in conditions which were far worse that anything Padilla underwent. (Go read about the Union POW camps). However, the Court held that the military could not try him for crimes while the civilian court system was operational. Padilla was tried in the civilian courts for his crimes after he release from military custody, just as Milligan requires.

BD: How do you figure?

By paying attention.

Brig. Gen Thiessen does say that Geneva Conventions were violated and also references things that are so bad he doesn't want to specify them in his written report.

Thank you for at least offering material sources which Professor Luban neglected to.

Your hearsay source alleges that Padilla was manacled, which Padilla's complaint does not allege is torture.

Your hearsay source also corroborates that the guards kept Padilla up at night. Sorry, but this is not close to torture, which is the intentional infliction of severe physical and mental pain.

There is no US law of which I am aware which prohibits coercive interrogation of unlawful enemy combatants regardless of nationality at levels less than statutorily defined torture.

[T]he fact remains that extreme and prolonged isolation is prohibited as torture.

Under what statute?

SOP for the capture and interrogation of high value prisoners of war when I served in the Army was to bind and hood them until they could be isolated for the duration of their interrogation. There is no requirement in the GC that someone must speak to or in any other way communicate with the POW while he is isolated.

The information used during torture interrogations was used to issue an arrest warrant for Padilla and was also used in the Nifongesque press conference to completely foul the jury pool with unwarranted, unproven, torture based and flat wrong accusations and speculations.

You are free to offer actual evidence for this at any time. The defense lost all their motions concerning these issues.

Moreover, as someone not taken on the battlefield, there is a tremendous difference as well...

Padilla was captured on the same battlefield on which the 9/11 terrorists operated.

Foreign enemy combatants captured and held overseas fall under a completely different category than Padilla.

Oh. You mean, like "enemy combatants" as opposed to domestic criminals? But then I am a little puzzled as to why the Dubya maladministration tried to claim for so long that Padilla was in the same boat, and that they could deny him his rights for years. Were they wrong?

Padilla was captured on the same battlefield on which the 9/11 terrorists operated.

Yes, indeed. See my first comment above.

[mary]: The only thing on which there has been absolutely no evidence is that Padilla is an "enemy combatant" which would have justified his transfer to the military.

["Bart"]: A jury found beyond a reasonable doubt based just upon the unclassified evidence that Padilla was a member of al Qaeda.

"Padilla and co-defendants Adham Hassoun, a Lebanese-born Palestinian, and Kifah Jayyousi, a naturalized U.S. citizen from Jordan, were found guilty of one count of conspiracy to murder, kidnap and maim overseas, an offense with a maximum penalty of life in prison. They also were convicted of one count of conspiracy to provide material support for terrorists and one count of material support for terrorists."

You'll note that the first charge was conspiracy to maim, kidnap, and kill, etc.. The other charges had to do with giving "support" to a Terra-ist organisation. FWIW, it is arguable that actions taken prior to 9/11 and the public designation of al Qaeda as a terrorist organisation can't be criminalised ex post facto by that designation.

... The military reportedly has far more information which proves Padilla's treason, but that information is not admissible for the purposes of criminal prosecution.

"Bart" knows a lot of stuff that we folks don't know. Amasing. He also knows all about the Terra-ist Surveillance Program, who was snooped, and how many plots were nipped in the bud and how, and so forth. Where does he get it all?

Padilla was captured on the same battlefield on which the 9/11 terrorists operated.

This, FWIW, is a great "get out of jail free" card. Now the whole friggin' world is a "battlefield", and of course, on a battlefield, "battlefield rules" apply and people can be summarily executed for not wearing uniforms. Wow. The possibilities simply boggle the mind (although Blackwater has been helpful in inspiring the imagination)....

"Dontcha know there's a war going on?!?!?!?" Maybe I'll relent and admit this state of affairs. And head for freaking Colorado.....

Bart De Palma: "The memo discusses the President's plenary CiC authority over the deployment and use of military forces against al Qaeda and the Taliban.

"How does this memo authorize the government to perpetrate the acts alleged by Padilla in the United States against a US citizen acting as an agent of al Qaeda?"

The explicit claim is:

"[No statute] can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."

This claim has been repeated ad nauseum in one form or another in every one of the detainee cases by the DOJ Civil Divison and the Solicitor General. It is a blank check to do anything the President pleases regardless of any statute to the contrary, and a wholesale usurpation of the constitutional authority of Congress to regulate the military affairs of the United States. He claims to act solely at his own discretion without regard for any law, and might just as easily decide to nuke Paris or roast a two-year-old child alive for dinner by that premise.

Padilla's case was unique and a case of first impression which the government did not handle very well.

The Government needs to develop a protocol for dealing with US citizens acting as enemy combatants for a foreign enemy because we will probably run into this in the future.

The Government first needs to make a timely decision whether to treat the capture as a prisoner of war or a criminal defendant. A POW can be interrogated while a criminal suspect has a right to silence. However, the offset is that any intelligence gained through military interrogation will be inadmissible in a civilian criminal trial.

If the Government treats the capture as a POW, he or she needs to be brought before a CRST as soon as practical subject to a subsequent habeas corpus review to determine whether the CRST was properly conducted.

If the Government treats the capture as a civilian criminal defendant, then the rules are already well established.

There is nothing unusual about treating US citizens as POWs during a war in which they acted as soldiers or agents of an enemy. However, they are due a status hearing under the GC and have a right to habeas corpus review unless Congress has properly suspended the writ.

I do not agree with the Qurin decision to the extent that it applies to US citizens. US citizens do not waive their constitutional due process rights applicable to criminal prosecution by committing treason. If the Government wants to try and punish them for criminal acts, then it is bound by the Constitution. This is in stark contrast to foreign enemy combatants who have no constitutional rights and can be tried by military tribunal.

Padilla's case was unique and a case of first impression which the government did not handle very well.

The Government needs to develop a protocol for dealing with US citizens acting as enemy combatants for a foreign enemy because we will probably run into this in the future.

Or in the past. See, e.g., Ex parte: Quirin.

The Government first needs to make a timely decision whether to treat the capture as a prisoner of war or a criminal defendant....

... as opposed to fighting any judicial review of their actions, locking up a citizen "captured" on U.S. soil and holding them without charges and without a lawyer for years, and then suddenly "changing their mind" and whisking said person into the civilian system rather than having to face the possibility that the case could turn out bad for them on review if they persisted with their military detention. Yeah, the case was handled "badly". One might even say "horrribly". Or "illegally".

... A POW can be interrogated while a criminal suspect has a right to silence....

Oh, BS. Stop spouting crap. Both POWs and criminal suspects can be (and are) interrogated. A POW has pretty much the same "right to silence" as does a criminal suspect. You can ask, but they don't have to answer. And the conditions under which you ask are legally circumscribed.

... However, the offset is that any intelligence gained through military interrogation will be inadmissible in a civilian criminal trial.

Huh? You making sh*te up again?

If the Government treats the capture as a POW, he or she needs to be brought before a CRST as soon as practical subject to a subsequent habeas corpus review to determine whether the CRST was properly conducted.

And this only after lots of judicial challenges, lots of legal foot-dragging by the maladministration, and several rebukes from the Supreme Court. Dubya initially said he could do what he damn well pleased ... but he was wrong.

If the Government treats the capture as a civilian criminal defendant, then the rules are already well established.

And violated by the gummint in Padilla's case.

There is nothing unusual about treating US citizens as POWs during a war in which they acted as soldiers or agents of an enemy. However, they are due a status hearing under the GC and have a right to habeas corpus review unless Congress has properly suspended the writ.

Thanks for finally admitting that Quirin recognised such.

I do not agree with the Qurin decision to the extent that it applies to US citizens....

Huh?!?!?

... US citizens do not waive their constitutional due process rights applicable to criminal prosecution by committing treason.

Quirin never said they did.

... If the Government wants to try and punish them for criminal acts, then it is bound by the Constitution....

The Quirin court carefully explained (as did I a while back, to you) how the decision that military commissions were permissible for the acts charged in Quirin was consistent with the Constitution. As they explained (and as I did, in a Lardneresque fashion), the "hook" was this: "except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger". This is what allowed the very same trial by a panel (and not by a jury) that was applicable to our servicemen as well.

... This is in stark contrast to foreign enemy combatants who have no constitutional rights and can be tried by military tribunal.

Nonsense. They have constitutional rights as well if the laws of the U.S. are to apply. I'd note that many "constitutional rights" are in fact limitations on what the gummint is allowed to do (e.g., "freedom of speech" doesn't mean your wife or your boss can't get you to shut up; it just means that this is one thing that the gummint is prohibited from doing. Why you persist in this notion that the gummint can violate the Constitution as long as they're doing it to the detriment of the "right" kind of people us beyond me).

The administration believes that al Qaeda is a terrorist organization and its members are not entitled to protection under the Geneva Convention. Administration critics believe that al Qaeda terrorists are criminals protected by the rules of the criminal justice system. Lower court judges have rules every possible way, but no final decision has been made.

Padilla joined a core of 18,000 soldiers created, recruited, trained, equipped, and financed by al Qaeda, which was part of a larger army of perhaps 50,000 soldiers raised by the Taliban. The Taliban, recognized by the US or not, controlled 90% of Afghanistan, a signatory to the Geneva Convention. If they were the government of Afghanistan and if the al Qaeda corps was part of their army, then the entire army was protected by the Third Geneva Convention. The question has not been seriously briefed, let alone decided. I will go out on a limb and predict that the Military Commissions will rule that some al Qaeda and Taliban soldiers are entitled to POW status in one of the future cases (maybe even Khadr).

That would mean that Padilla had combatant immunity from the time he enlisted (July 24, 2000) until the moment he stepped off the plane onto US soil. Since he did not commit a crime during the next five minutes before he was captured, he is immune from criminal prosecution for anything he did as a soldier.

That is why "due process of law" is not a solution. If the enemy is entitled to protection under the Fourth Geneva convention, then due process of civilian law violates our international obligations. An enemy soldier can only be held in military custody and cannot be tried in civilian courts.

Padilla has been convicted in Miami of crimes he committed before enlisting in al Qaeda. He has not been charged with any crime for anything he did after becoming a soldier. Both are consistent with either outcome, for or against combatant immunity.

Nobody disputes that Padilla lost combatant immunity when he stepped off the plane, and he was captured under circumstances that made him a spy who was not entitled to protection under the Third Geneva Convention. However, if he had been captured before he got off the plane then it is not clear that we would have been able to charge him with any crime or hold him except as a POW. However, the fact that his actions in the last five minutes before capture happen to make it legal for us to file some criminal charges (while at the same time providing no charges to file) does not rationally mean that because Padilla is an American citizen we are prohibited from capturing him as an enemy soldier and must instead release him to continue his mission.

In Quirin, the defendants questioned the charge that they "crossed lines of defense out of uniform" by stepping onto an unpatrolled beach. With no soldiers present, how was it a line of defense? The Supreme Court ruled that our borders are a line of defense no matter how well or poorly they are patrolled. The territorial waters, borders, and ports (including airports) of the US are a de jure line of defense in times of war, but unlike some other countries they are not typically patrolled by military units. Instead, defense of the borders is assigned to the armed members of Federal civilian or paramilitary units that also guard the border in times of peace: the Coast Guard, Border Patrol, Customs, Immigration, and on occasion the FBI. So when Padilla was captured at the customs and immigration station in the airport, he was an enemy soldier on a military mission captured at a military checkpoint of the US by the Federal officials designated to defend the US from enemy soldiers like him. Padilla was not captured on a battlefield, but he was captured at a military line of defense, at least according to the law.

All that said, return to the original post. If Padilla has been stretched out on the rack and put to the question, and if this treatment was ordered or approved by Yoo, then he has a cause of action. So the post is right that there is no structural defect with the complaint. What remains is to get the one thing that everyone notices is missing in this case, the evidence. Padilla has been litigating for five years without any discovery, testimony, or deposition. The government claims to have thousands of hours of tape, but nobody has seen it. So everyone who comments in this case (me included) sees whatever they are inclined to believe and rejects what they are inclined not to find credible. Legal nuance is fun, but some real evidence would be nice for a change.

If no court found Padilla to be an "enemy combatant", it is because throughout his detention Padilla never challenged that classification. After Hamdi it was clear that he had the right to do so. The other inmate in the Charleston brig, Ali al-Marri, did challenge his classification and received a hearing before a Federal District Court to determine his combatant status. It is not particularly convincing for Padilla to decide not to ask for a tribunal he was entitled to, and then years later complain because his status was never determined by a tribunal.

Lets stop all the BS, swear someone in, and take some actual testimony. I want to hear the tapes. I want to see a cross-examination. I am not interested in lawyers making unsupported accusations. Five years of preliminary motions with no questions resolved means the system is broken. Lets have discovery!

["Bart"]: Padilla was captured on the same battlefield on which the 9/11 terrorists operated.

[Arne]: This, FWIW, is a great "get out of jail free" card. Now the whole friggin' world is a "battlefield", and of course, on a battlefield, "battlefield rules" apply and people can be summarily executed for not wearing uniforms. Wow. The possibilities simply boggle the mind (although Blackwater has been helpful in inspiring the imagination)....

[Arne]: "Dontcha know there's a war going on?!?!?!?" Maybe I'll relent and admit this state of affairs. And head for freaking Colorado.....

....

["Bart"]: The battlefield is anywhere the enemy is operating. There is no sanctuary into which the enemy can hide from capture.

That's what I said. The whole world's a battlefield (under your formulation, at least). If O'Hare's a "battlefield" (as I so readily admitted above, after your assertion that such was the case), then "battlefield rules" apply, and people can be summarily executed on Concourse C for looking cross-eyed atcha (while not wearing a uniform, of course, so maybe at least the counter agents are safe from all but stray bullets). Wow. The possibilities simply boggle the mind (although Blackwater has been helpful in inspiring the imagination)....

Care to respond in something resembling a rational manner? Or are you going to just talk past your disputants once again and pretend not to hear what they've said?

The basic rule pertaining to the prosecution of POW's is simple: they are not subject to prosecution for acts which would normally be crimes if the act was committed pursuant to a lawful military operation. That is the "combatant privilege," and applies ONLY to persons who are protected by Geneva III POWs; everyone else is protected by Geneva IV as a civilian.

Anyone can be tried for a war crime, and POWs are subject to prosecution for ordinary crimes committed outside the context of lawful operations, but in all cases they are entitled to due process and a fair trial. PERIOD.

That is the basic structure here, Geneva 1949 / Hague IV 1907 are the controlling law, and none of this is really controversial let alone difficult. The only real problem here is that the administration wants to subject people who they accuse of crimes to indefinite detention without the benefit of a fair trial. That is both a war crime and a crime against humanity.

If no court found Padilla to be an "enemy combatant", it is because throughout his detention Padilla never challenged that classification. After Hamdi it was clear that he had the right to do so. The other inmate in the Charleston brig, Ali al-Marri, did challenge his classification and received a hearing before a Federal District Court to determine his combatant status.

IIRC, facing an appeal from the Fourth Circuit to the Supreme Court of Padilla's combatant status (and their reversal of the district court's order that Padilla be released from military custody), the maladministration decided to avoid a possible adverse decision from the Supreme Court that might have other repercussions as well, and instead turned him over for civilian prosecution (and promptly moved to have Padilla's constitutional challenge to his military incarceration mooted). To say he never challenged his military detention (as an "enemy combatant") is simply wrong.

BD: ... A POW can be interrogated while a criminal suspect has a right to silence....

Oh, BS. Stop spouting crap. Both POWs and criminal suspects can be (and are) interrogated. A POW has pretty much the same "right to silence" as does a criminal suspect. You can ask, but they don't have to answer. And the conditions under which you ask are legally circumscribed.

What? Police questioning stops when a civilian criminal defendant invokes his right to silence.

BD:... However, the offset is that any intelligence gained through military interrogation will be inadmissible in a civilian criminal trial.

Huh? You making sh*te up again?

The fruits of interrogation without Miranda are inadmissible.

I do not agree with the Qurin decision to the extent that it applies to US citizens....US citizens do not waive their constitutional due process rights applicable to criminal prosecution by committing treason.

Quirin never said they did.

... If the Government wants to try and punish them for criminal acts, then it is bound by the Constitution....

The Quirin court carefully explained (as did I a while back, to you) how the decision that military commissions were permissible for the acts charged in Quirin was consistent with the Constitution.

The Court spent a great deal of writing to hold simply that US citizens who act as unlawful enemy combatants lose their 5th and 6th Amendment rights and may be tried by military tribunal. 317 U.S. 1, 13-20 (1942). (The more a court writes to support a proposition, the weaker that proposition is). Although the Court does not use the term, this is a waiver holding.

... This is in stark contrast to foreign enemy combatants who have no constitutional rights and can be tried by military tribunal.

Nonsense. They have constitutional rights as well if the laws of the U.S. are to apply.

Foreign enemy combatants trying to kill the People are not part of the People.

Furthermore, the Constitution grants Congress the right to set rules for Captures. This implies that there are no Constitutional rules for captures.

Charles:While Padilla may have intended to commit a war crime, he did not get a chance to complete his mission. Conspiracy is a civilian charge that cannot be made in military court. There is no charge of "conspiracy to commit a war crime", especially if the war crime never happens. The government never said that Padilla committed a crime as a soldier. They never said that criminal charges of any sort (military or civilian) were possible for his actions during this period. Padilla was held as a enemy combatant (prisoner of war). If he could not be held as an enemy combatant, that was the only claim the government made or ever said that they would make.

Remember, the criminal charges in Miami apply to things he did before he became an enemy combatant.

Arne:The Second and Fourth Circuit litigation involved motions for summary judgement. Since this requests the court to decide the case based on law without taking evidence, the court had to assume the government's claim that he was an enemy combatant but find for Padilla as a matter of law. The question before the court was whether the President's classification of Padilla as an enemy combatant was legally sufficient to hold him in military custody.

If this question had gone to the Supreme Court, the issue of whether Padilla was or was not an enemy combatant would still not have been raised let alone decided. If the court found for him, that question would be irrelevant. If not, then denied summary judgement he could have gone to trial on the merits and then contested the classification.

Padilla cannot contest his combatant status without testifying, and if he admits in open court to anything the government claims he has already been taped saying about the two years he spent as a soldier, then he can be tried for Treason. Of course, if you believe as some here have said that the government is making it all up, then Padilla has no reason not to take the stand.

18 USC 371 is the federal conspiracy statute. If even a fraction of what the government alleges is true there are numerous statutes under which Padilla might be charged. The whole thing was a dodge from the start -- a conspiracy by the administration to commit crimes p. 18 USC 2441 and a number of other statues. It was never about jurisdiction.

If Padilla was a soldier in the army of Afghanistan, then you cannot charge him with 18 USC 371 or any other US domestic law for training or planning to go on a military mission. Soldiers train to kill people and blow stuff up. Sometimes in combat they kill people and blow stuff up. The whole purpose of combatant immunity is that you cannot charge a soldier with civilian crimes for performing his military duties.

He intended to carry out his mission as as spy, pretending to be a civilian. That means you can charge him with crossing lines out of uniform when you caught him, but you still can't turn his military demolitions training or his mission planning into a civilian crime or conspiracy.

Of course you can try to claim that al Qaeda isn't entitled to GC protection. The Germans killed a few million Russian POWs, and the Russians killed a lot of German POWs. However, if you do this and you are wrong, then you have done what this case charges Yoo with doing. You have given a legal opinion that leads to what is clearly a War Crime (denying Padilla the protection of the GC).

"If Padilla was a soldier in the army of Afghanistan, then you cannot charge him with 18 USC 371 or any other US domestic law for training or planning to go on a military mission."

Og balony.

Manuel Noriega was tried and convicted for drug trafficking and served out his sentence while being held as a POW. The Geneva Conventions do not protect criminals from being prosecuted. I don't care about trumped up charges based on training and guilt-by-association: wanton attacks on civilians are war crimes even when committed in uniform during an otherwise lawful military operation.

"wanton attacks on civilians are war crimes even when committed in uniform during an otherwise lawful military operation" Dresden, Tokyo, Hiroshima, Nagasaki. On April 7, 2003 a B-1B dropped four 2000 pound JDAM bombs on a restaurant where Saddam was believed to be eating. Eighteen civilians were killed, but Saddam wasn't there.

Any enemy soldier can be charged with crimes that are crimes when committed by our own soldiers: rape, murder, drug dealing, etc. No soldier is immune to prosecution. Immunity applies to military operations. So a soldier cannot be tried for murder for killing during combat, even if he happens to kill a civilian by accident. However, if he robs money from a store owner and kills him, that is murder.

However, under the Geneva Convention an enemy soldier cannot be tried by a civilian court for crimes he commits if your own soldiers would not be tried for the same court if they did the same thing. To charge Padilla with a crime, we would have to charge him under the UCMJ and bring him before a Court Martial. To do that, he has to be in military custody, not civilian custody. Yet the whole issue before us was whether Padilla can be held by the military or should be tried by a civilian court.

Padilla was prevented from committing a war crime. However, even if he could be charged with a war crime, he still cannot under international law be charged for that crime in civilian court if he is a soldier in an enemy army captured in war.

Padilla has been charged in civilian court for things he did as a civilian. He could have been charged in military court for things he did as a soldier. He can be held in military custody simply for being an enemy soldier. However, he cannot be brought before a civilian court for things he did as a soldier, and any attempt to do so is itself a war crime (and the US convicted Japanese judges after WWII for that crime).

As I said, neither the administration nor its critics are willing to say that al Qaeda or the Taliban deserve POW status or combatant immunity. What does that prove?

Last night I googled the terms "USS Cole terrorist attack" and found 46,000 hits including quotes from President Clinton, the 9/11 Commission, and every major news source. Everyone seems happy to call a military attack on a US warship by forces of a foreign army that previously declared war on us twice to be "terrorism" instead of combat and an act of war.

When the US imagined that the enemy army was safely landlocked in the Afghan mountains and could only mount the occasional special operation against us, it was politically popular to call them terrorists. Then the Democrats and Republicans could continue to fund their earmarks, bridges to nowhere, and tax cuts for the wealthy. Because, if we are at war, then you don't get to waste money like that.

The government is supposed to defend us from foreign enemies, particularly those who have declared war and committed acts of war over a period of several years. However, crimes happen all the time. If 9/11 is "terrorism" then it seems like random violence that nobody could have anticipated. If somebody notices that it was just the most recent attack in a war that has gone on for years without any serious response on our part, then it begins to look more like incompetence.

William Taft IV as he then was as Legal Adviser argued for Geneva POW Protections for Taliban and, of course, the Supreme Court said Common Article 3 applied in the conflict with Al-Qaeda so you do not have to be an administration critic to get there quickly. There are governors of provinces from the Taliban era in Afghanistan held at Gitmo. These persons are obvious candidates for POW status.Best,Ben

["Bart"]: ... A POW can be interrogated while a criminal suspect has a right to silence....

[Arne]: Oh, BS. Stop spouting crap. Both POWs and criminal suspects can be (and are) interrogated. A POW has pretty much the same "right to silence" as does a criminal suspect. You can ask, but they don't have to answer. And the conditions under which you ask are legally circumscribed.

["Bart"]: What? Police questioning stops when a civilian criminal defendant invokes his right to silence.

A matter of convention, not of positive constitutional law. There are other means of enforcing the dictates of the Fifth Amendment (such as holding officers civilly responsible for violations rather than the exclusionary rule; an approach that would perhaps better serve the purposes of discouraging such behaviour, but which would be resisted en masse by the LEAs). The exclusionary rule doesn't prevent the interrogations, nor does it make them illegal. It just says that any such evidence obtained cannot be used for criminal prosecution. But that would be as true of any POW as well; the same Constitution applies. I'd note that the Fifth Amendment doesn't free one from the obligation of testifying (and answering questions) in fron of Congress or a grand jury. And I'd also note that no "coercive" interrogation may be made of POWs.

["Bart"]: ... However, the offset is that any intelligence gained through military interrogation will be inadmissible in a civilian criminal trial.

[Arne]: Huh? You making sh*te up again?

The fruits of interrogation without Miranda are inadmissible.

True (unless the interrogation proceeds voluntarily after a proper Miranda warning, in which case the "intelligence gained through interrogation" would be admissible). But what does that have to do with the price of tea in Sri Lanka? Or with your previous statement?

["Bart"]: I do not agree with the Qurin decision to the extent that it applies to US citizens....US citizens do not waive their constitutional due process rights applicable to criminal prosecution by committing treason.

[Arne]: Quirin never said they did.

["Bart"]: ... If the Government wants to try and punish them for criminal acts, then it is bound by the Constitution....

[Arne]: The Quirin court carefully explained (as did I a while back, to you) how the decision that military commissions were permissible for the acts charged in Quirin was consistent with the Constitution.

["Bart"]: The Court spent a great deal of writing to hold simply that US citizens who act as unlawful enemy combatants lose their 5th and 6th Amendment rights and may be tried by military tribunal. 317 U.S. 1, 13-20 (1942)....

Go back there and address the cites and quotes I put in that first link. Please. There is NO language in Quirinwhatsoever that says that "US citizens who act as unlawful enemy combatants lose their 5th and 6th Amendment rights". Period. In any way, shape, or form.

["Bart"]: (The more a court writes to support a proposition, the weaker that proposition is).

This may be your opinion. It is hardly a legal argument.

["Bart"]: Although the Court does not use the term, this is a waiver holding.

Huh?!?!?!? They said what you said they said even thought they didn't say what you said they said?!?!?

FWIW, it is true that you may indeed waive your constitutional rights (at least under some circumstances) and thus lose the right to raise them at a later time ... but this is not one of those. Flat out obvious on the face of it. Courts look askance at "implicit waiver" (and even more so at "waiver by dint of being a 'bad guy'", much as that would help law enforecement people), and you can find no case that would hold that there had been any kind of waiver in any similar circumstances, much less some implicit court holding of some implicit waiver of rights by the Quirin/Haupt petitioners.

["Bart"]: ... This is in stark contrast to foreign enemy combatants who have no constitutional rights and can be tried by military tribunal.

[Arne]: Nonsense. They have constitutional rights as well if the laws of the U.S. are to apply.

["Bart"]: Foreign enemy combatants trying to kill the People are not part of the People.

"Wow. It's two! Two! Two mistakes in one!!!!"

First off, "person" in the BoR has been held to refer to any person within the U.S., citizen or alien. There's no exception, no out, for "baddies", much as this might simplify 'law enforcement'. Similarly for non-citizens. Some amendments refer to "citizens", and to "persons", in different parts (see, e.g., the Fourteenth), and this distinction is held to be significant. If you truly think that constitutional protections in the bill of rights are not available to aliens within the U.S., your bar license should be revoked (and you should probably also be required to wear a sign around your neck saying "I'm stoopid ... or terminally dishonest").

Secondly, as I pointed out (and you ignored), a number of the "rights" we have (such as 'free speech') are not so much a right of the citizens but rather are a limitation on the gummint; the gummint may not do certain things. This is true from a legal perspective even if the (otherwise) most proper plaintiff in some specific case challenging gummint action has no cause of action in that instance for that action because of jurisdictional or standing limitations.

["Bart"]: Furthermore, the Constitution grants Congress the right to set rules for Captures. This implies that there are no Constitutional rules for captures.

[Howard Gilbert]: If no court found Padilla to be an "enemy combatant", it is because throughout his detention Padilla never challenged that classification. After Hamdi it was clear that he had the right to do so. The other inmate in the Charleston brig, Ali al-Marri, did challenge his classification and received a hearing before a Federal District Court to determine his combatant status.

[Arne]: IIRC, facing an appeal from the Fourth Circuit to the Supreme Court of Padilla's combatant status (and their reversal of the district court's order that Padilla be released from military custody), the maladministration decided to avoid a possible adverse decision from the Supreme Court that might have other repercussions as well, and instead turned him over for civilian prosecution (and promptly moved to have Padilla's constitutional challenge to his military incarceration mooted). To say he never challenged his military detention (as an "enemy combatant") is simply wrong.

[Howard Gilbert]: The Second and Fourth Circuit litigation involved motions for summary judgement. Since this requests the court to decide the case based on law without taking evidence, the court had to assume the government's claim that he was an enemy combatant but find for Padilla as a matter of law...

Yes. For purposes of deciding, they have to assume all factual matters in favour of the non-moving party. But that's hardly a legal determination that he was such. But no one disputes that Dubya designated him an "enemy combatant". Dubya could also have called him a "dirty slum rat" too; the gravamen of the argument was that it didn't freakin' matter what Dubya called him; he couldn't be held in military custody in contravention of the Fourth, Fifth, and Sixth Amendments and the Suspension Clause. This is why a SJ motion was appropriate.

... The question before the court was whether the President's classification of Padilla as an enemy combatant was legally sufficient to hold him in military custody.

Yes. But what was important is whether he could be held in military custody under the specific circumstances of his case just because someone called him an "enemy combatant". He didn't argue that he wasn't an "enemy combatant" (or that he hadn't been named such by Dubya et al.; rather he said they lacked the power to hold him regardless of any appellation. I'd note that he couldn't challenge any "CSRT" determination because none had been made. He challenged his detention just because Dubya called him one. He said that Dubya can't do that to citizens on U.S. soil.

Note that I said in the previous post that he challenged his detention ... not the designation. Dubya can call him anything he likes; it's the detention that is a proper subject for a habeas petition.

[Howard Gilbert]: If this question had gone to the Supreme Court, the issue of whether Padilla was or was not an enemy combatant would still not have been raised let alone decided....

Maybe. Maybe not. It may have been ruled immaterial. The district court thought so.

... If the court found for him, that question would be irrelevant. If not, then denied summary judgement he could have gone to trial on the merits and then contested the classification.

Yes, if the Supreme Court had decided that U.S. citizens can be held in military custody if they are "enemy combatants" (and thanks to Hamdi, those people have a right to contest that as well). But the maladministration was afraid that the Supreme Court might rule against them on Padilla's circumstances, and that they didn't want. So they tried to "moot" the appeal on the constitutional issues.

Padilla cannot contest his combatant status without testifying,...

Sure, he can. You're making this up.

... and if he admits in open court to anything the government claims he has already been taped saying about the two years he spent as a soldier, then he can be tried for Treason....

Whoopdedoo. Do you think he will, huh? Tellya what: I'll bet you a dollar to donuts he doesn't admit to treason in court.

... Of course, if you believe as some here have said that the government is making it all up, then Padilla has no reason not to take the stand.

Who said the gummint "is making it all up"? Most people think that Padilla is rather stupid and showed at the very least quite poor judgment. Whether his actions before 9/11 amount to something that -- by dint of proclamation after 9/11 -- constitutes a crime that should be prosecuted is another matter. There's this little bit about intent there; he claims he wanted to fight in Bosnia; it is hardly clear he had the requisite intent to harm the U.S. (or to "levy War" against it, or "adhere" to its enemies). If his intent was to simply harm people some of which might have been U.S. citizens, that's really a criminal matter, and not a military one, and should have been dealt with in the realm of the criminal justice system. The "dirty bomb" thing kind of fell apart; the maladministration didn't even charge him with this.

However, he cannot be brought before a civilian court for things he did as a soldier....

<*BZZZZT!*>

Wrong. Repeated assertion doesn't make it so. FWIW, while the GC3 specifies that POWs cannot be tried in civilian courts, there's the exception that such civilian courts can be used for such crimes as are also triable in civilian court for members of the detaining party's own soldiers (Article 84).

Yoo just responded to the lawsuit in an op-ed in the Philadelphia Inquirer where he called the suit a form of "Lawfare." I took the opportunity to explore the interesting theoretical history of Lawfare here. Lawfare is a genuine form of asymmetrical warfare which predates Yoo.